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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JAKAN MILLS,
CDCR #P11240,
Plaintiff,
vs.
CORRECTIONAL OFFICER PATRICIO;
CORRECTIONAL OFFICER VALENCIA;
AND CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Defendants.
Case No.: 25-cv-2158-AJB-DEB
ORDER:
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS;
AND
(2) DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) & 1915A(b)
Plaintiff Jakan Mills is a state inmate currently incarcerated at Richard J. Donovan
Correctional Facility (“RJD”) in San Diego, California, proceeding pro se with a civil rights
Complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) After the Court dismissed this civil
action for failure to pay the filing fees required by 28 U.S.C. § 1914(a) and/or failure to
properly move to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), Plaintiff filed
a motion to proceed in forma pauperis (“IFP”). (Doc. Nos. 3–4.)
I. 	Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the
United States, except an application for writ of habeas corpus, must pay a filing fee of
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$405, consisting of a $350 statutory fee plus an additional administrative fee of $55,
although the administrative fee does not apply to persons granted leave to proceed IFP.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to
prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner
seeking leave to proceed IFP must submit a “certified copy of the trust fund account
statement (or institutional equivalent) for . . . the 6-month period immediately preceding
the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119
(9th Cir. 2005). From the certified trust account statement, the Court assesses an initial
payment of 20% of (a) the average monthly deposits in the account for the past six months,
or (b) the average monthly balance in the account for the past six months, whichever is
greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1) & (4); Bruce
v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining
balance in “increments” or “installments,” regardless of whether their action is ultimately
dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.
In support of his IFP motion, Plaintiff has submitted a copy of his California
Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and
Prison Certificate attested to by a CDCR trust account official. (Doc. No. 4 at 4.) The
document shows he had an average monthly balance of $59.06 and average monthly
deposits of $49.84, with an available balance of $10.00. Id. Therefore, the Court GRANTS
Plaintiff’s motion to proceed IFP and assesses an initial partial filing fee of $11.81, but the
initial fee need be collected only if sufficient funds are available in Plaintiff’s account at
the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
shall a prisoner be prohibited from bringing a civil action or appealing a civil action or
criminal judgment for the reason that the prisoner has no assets and no means by which to
pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
§ 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
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solely on a “failure to pay . . . due to the lack of funds available to him when payment is
ordered.”) Plaintiff is required to pay the balance of the $350 filing fee required by 28
U.S.C. § 1914 pursuant to the installment payment provisions of 28 U.S.C. § 1915(b)(1).
II. 	Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
A. 	Standard of Review
Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua
sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez
v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2));
Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)).
“The standard for determining whether a plaintiff has failed to state a claim upon
which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether
a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id.
Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
acting under color of state law, violate federal constitutional or statutory rights.” Devereaux
v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
substantive rights, but merely provides a method for vindicating federal rights elsewhere
conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quote marks
omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
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secured by the Constitution and laws of the United States, and (2) that the deprivation was
committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
F.3d 1128, 1138 (9th Cir. 2012).
B. 	Allegations in the Complaint
Plaintiff alleges that on July 27, 2022, Defendant Patricio “made a racially
discriminatory remark” when he told Plaintiff to go to work “by stating it’s ‘chicken on the
bone’ insinuating Black people love chicken,” and Defendant Valencia subsequently
repeated Patricio’s statement over the public announcement system. (Doc. No. 1 at 4.)
Plaintiff alleges the statement was “racially discriminatory and embarrassing and hurtful”
and caused him “mental anguish & emotional distress” given he was already suffering from
PTSD, anguish and distress from a prior beating he suffered at the hands of correctional
officers. (Id.) Plaintiff alleges this incident also “exacerbated those already serious mental
health issues under the Americans with Disabilities Act because he was already a protected
member under ADA.” (Id. at 5.) Plaintiff “believes and alleges here that this incident was
retaliatory in nature stemming from prior grievances and legal actions filed against CDCR”
and notes “CDCR sustained the incident in its administrative investigation but failed to
take meaningful corrective action.” (Id. at 7.)
Plaintiff alleges violations of due process and equal protection under the Fourteenth
Amendment, cruel and unusual punishment under the Eighth Amendment, retaliation under
the First Amendment and ADA violations under Title II. (Id. at 3, 8.) Plaintiff also alleges
Defendants violated the Bane Act. (Id. at 8.) Plaintiff seeks to proceed against Defendants
Patricio and Valencia in their individual and official capacities and against Defendant
CDCR in its official capacity. (See id. 	at 2–3.) Plaintiff seeks monetary damages,
declaratory relief acknowledging the Defendants’ violation of his rights, and injunctive
relief “mandating that CDCR implement anti-retaliation training and monitor racial
harassment & provide mental support when these things occur.” (Id. at 5.)
///
///
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C. 	Discussion
As an initial matter, Plaintiff may not proceed against Defendant CDCR on his First,
Eighth, and Fourteenth Amendment claims because CDCR is not a “person” subject to suit
under § 1983. See Devereaux, 263 F.3d at 1074 (Title 42 U.S.C. § 1983 “creates a private
right of action against individuals who, acting under color of state law, violate federal
constitutional or statutory rights.”); see Will v. Michigan Dept. of State Police, 491 U.S.
58, 71 (1989) (“[N]either a State nor its officials acting in their official capacities are
‘persons’ under § 1983.”); see also Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004)
(“State agencies . . . are not ‘persons’ within the meaning of § 1983, and are therefore not
amenable to suit under that statute.”) (citing Will, 491 U.S. at 70).
Nor may Plaintiff proceed with a claim for damages against CDCR or any of the
Defendants in their “official capacity” because such claims are barred under the Eleventh
Amendment. Absent “a waiver by the state or a valid congressional override,” Dittman v.
California, 191 F.3d 1020, 1025 (9th Cir. 1999), “[t]he Eleventh Amendment bars suits for
money damages in federal court against a state, its agencies, and state officials acting in
their official capacities.” Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147
(9th Cir. 2007). “The State of California has not waived its Eleventh Amendment immunity
with respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025–
26; see Alabama v. Pugh, 438 U.S. 781, 782 (1978) (“There can be no doubt, however, that
suit against the State and its Board of Corrections is barred by the Eleventh Amendment,
unless [the State] has consented to the filing of such a suit.”) Accordingly, the Court
dismisses CDCR as a Defendant with respect to Plaintiff’s First, Eighth, and Fourteenth
Amendment claims for damages. The Court also dismisses all three Defendants to the
extent Plaintiff seeks damages from them in their official capacities, with the exception of
the ADA claim discussed in more detail below. The Court will proceed to consider
Plaintiff’s remaining claims against the named Defendants.
1. 	Fourteenth Amendment Due Process and Equal Protection
Plaintiff alleges Defendants 	Patricio 	and 	Valencia 	intentionally 	discriminated
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against him based on race in violation of his Fourteenth Amendment rights to due process
and equal protection. (Doc. No. 1 at 3–5, 7–8.)
The Due Process Clause of the Fourteenth Amendment prohibits states from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Liberty interests protected by the Due Process Clause for
incarcerated persons “will be generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise to protection by the
Due Process Clause of its own force, nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515
U.S. 472, 484 (1995). Meanwhile, “[t]he Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any person within its jurisdiction the
equal protection of the laws,’ which is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473
U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a claim
for violation of the Equal Protection Clause, a plaintiff must show that the defendant acted
with an intent or purpose to discriminate against him based upon his membership in a
protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (citation
omitted).
Plaintiff first fails to state facts which plausibly allege he was deprived of a protected
liberty interest and instead only offers a vague and conclusory assertion that his due process
rights were violated. (See Doc. No. 1 at 3.) To the extent Plaintiff’s contention appears to
be based solely on the Defendants’ verbal remarks, he fails to state a Fourteenth
Amendment due process violation, as “courts have held that verbal harassment, including
abuse or threats, without more, is not cognizable under a § 1983 claim based on the
Fourteenth Amendment.” Thomas v. Gore, 2019 WL 927771, at *5 (S.D. Cal. Feb. 27,
2019) (collecting cases); see also generally Sandin, 515 U.S. at 480 (“The Due Process
Clause standing alone confers no liberty interest in freedom from state action taken ‘within
the sentence imposed.’”) (additional citations and quote marks omitted).
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Nor do Plaintiff’s allegations plausibly state an equal protection claim under the
Fourteenth Amendment. Plaintiff does set forth facts alleging membership in a protected
class, as he asserts Defendants’ comments were made because of his race. (See Doc. No. 1
at 4); see e.g., Fields v. Legacy Health System, 413 F.3d 943, 955 (9th Cir. 2005) (noting
that “race, alienage, national origin, or sex” are examples of “protected characteristics” for
purposes of equal protection review). However, Plaintiff fails to allege any facts plausibly
connecting the asserted statements to any discriminatory 	conduct or action by any
Defendant. In order for Plaintiff to state an equal protection claim under section 1983, he
must show that a Defendant “acted with an intent or purpose to discriminate against him
based upon his membership in a protected class.” Serrano, 345 F.3d at 1082 (citation
omitted) (emphasis added). Plaintiff’s Complaint fails to allege that any Defendant took
action to discriminate against him based on race and again, “verbal harassment, including
abuse or threats, without more, is not cognizable under a § 1983 claim based on the
Fourteenth Amendment.” Thomas, 2019 WL 927771, at *5 (collecting cases).
Accordingly, Plaintiff’s Fourteenth Amendment due process and equal protection
claim is dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure
to state a claim.
2. 	Eighth Amendment Claim
While Plaintiff indicates he alleges an Eighth Amendment claim (see Doc. No. 1 at
3), he does not appear to specifically articulate or allege how Defendant Patricio’s and/or
Valencia’s actions constituted cruel and unusual punishment. Instead, Plaintiff appears to
only generally contend that “Defendants[’] actions were outrageous and intended to cause
emotional harm, resulting in severe distress.” (Id. at 8.) To the extent Plaintiff asserts the
Defendants’ actions in making the contested remarks, which Plaintiff claims “caus[ed]
emotional distress and psychological harm” (id. at 7), were violative of the Eighth
Amendment, Plaintiff fails to state a claim.
“[A] prison official violates the Eighth Amendment when two requirements are met.
First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
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Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Second, Plaintiff must allege the prison official had a “sufficiently culpable state of mind,”
that is, “one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson,
501 U.S. at 302–03). A prison official must “know[] of and disregard[] an excessive risk
to inmate health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Id. at 837.
Plaintiff’s allegations are insufficient to state an Eighth Amendment violation
because he fails to plausibly allege a deprivation that was “objectively, ‘sufficiently
serious,’” or that either Defendant had a “sufficiently culpable state of mind.” Id. at 834
(quoting Wilson, 501 U.S. at 298). Nor does Plaintiff set forth any facts plausibly alleging
that he suffered a sufficiently serious physical injury due to a Defendant’s deliberate
indifference to the substantial or excessive risk of serious harm. See Oliver v. Keller, 289
F.3d 623, 627 (9th Cir. 2002) (holding that the PLRA “requires a prior showing of physical
injury that need not be significant but must be more than de minimis.”); see also Goode v.
Canedo, S.D. Cal. Case No. 21-cv-2054-GPC-KSC, 2022 WL 16753312, at *6 (S.D. Cal.
Nov. 7, 2022) (“The threshold of physical injury necessary is not specified in the PLRA,
but courts have interpreted this to require physical injury more than de minimis.”) (citing
Oliver, 289 F.3d at 628 (9th Cir. 2002)). Plaintiff instead alleges Defendants’ verbal
remarks caused “emotional distress and psychological harm,” (Doc. No. 1 at 7), which do
not suffice to state a claim. See Oliver, 289 F.3d at 627; see also Watison, 668 F.3d at 1113
(“‘[T]he exchange of verbal insults between inmates and guards is a constant, daily ritual
observed in this nation’s prisons’ of which ‘we do not approve,’ but which do not violate
the Eighth Amendment.”) (quoting Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997)).
Accordingly, Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant
to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
3. 	First Amendment Retaliation Claim
Plaintiff alleges Defendants Patricio and Valencia “retaliated against Plaintiff for
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exercising his right to file grievances of redress to the courts, violating his First
Amendment rights because their (CDCR’s) abuse continued, after previous incidents.”
(Doc. No. 1 at 8.) Plaintiff states that he “believes and alleges here that this incident was
retaliatory in nature stemming from prior grievances and legal actions filed against
CDCR.” (Id. at 7.)
“Prisoners have a First Amendment right to file grievances against prison officials
and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114. “Within the prison
context, a viable claim of First Amendment retaliation entails five basic elements: (1) An
assertion that a state actor took some adverse action against an inmate (2) because of (3)
that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of
his First Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005).
Here, Plaintiff’s allegations of verbal harassment again do not suffice to state a claim
cognizable under 42 U.S.C. § 1983. See e.g. Oltarzewski v. Ruggiero, 830 F.2d 136, 139
(9th Cir. 1987) (“‘Verbal harassment or abuse . . . is not sufficient to state a constitutional
deprivation under 42 U.S.C. § 1983.’”) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th
Cir. 1979)). Moreover, while Plaintiff indicates he “believes and alleges” that Defendants’
comments were retaliatory, he also fails to state any facts which plausibly allege that the
Defendants were both aware of his prior grievances and/or legal actions and that any
Defendant took an adverse action against Plaintiff because of his exercise of that protected
conduct. See Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“[M]ere speculation that
defendants acted out of retaliation is not sufficient.”); Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.”); see e.g., Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.
1989) (“[A] plaintiff alleging retaliation for the exercise of constitutionally protected rights
must initially show that the protected conduct was a ‘substantial’ or ‘motivating’ factor in
the defendant’s decision.”) (quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977)). If Plaintiff wishes to proceed with a 42 U.S.C. § 1983 claim
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based on retaliation, he must set forth facts which plausibly allege a Defendant took an
adverse action because of his protected conduct which chilled his exercise of his First
Amendment rights and which did not reasonably advance a legitimate correctional goal.
Rhodes, 408 F.3d at 567–68.
Accordingly, Plaintiff’s First Amendment retaliation claim is dismissed sua sponte
pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
4. 	ADA Claim
Plaintiff next asserts a violation of the ADA. (Doc. No. 1 at 3, 5, 7–8.) First, to the
extent he seeks to proceed against all three named Defendants, Plaintiff may not pursue an
ADA claim against either Defendants Patricio or Valencia in their individual capacities,
only in their official capacities. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)
(“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in
[their] individual capacity to vindicate rights created by Title II of the ADA . . .”); see also
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (“The ADA applies only to public
entities . . .”); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188 (“Title II’s statutory language
does not prohibit [] injunctive action against state officials in their official capacities.”).
Plaintiff may pursue an ADA claim for damages against CDCR. See United States
v. Georgia, 546 U.S. 151, 154 (2006) (“Title II [of the ADA] authorizes suits by private
citizens for money damages against public entities that violate § 12132.”) (additional
citations omitted). To state a claim under the ADA, however, Plaintiff must allege:
(1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to
participate in or receive the benefit of some public entity’s services, programs,
or activities;’ (3) he ‘was either excluded from participation in or denied the
benefits of the public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,
denial of benefits, or discrimination was by reason of (his) disability.’
O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citations
omitted).
Here, Plaintiff generally alleges that “[t]his incident exacerbated those already
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serious mental health issues under the Americans with Disabilities Act because he was
already a protected member under ADA” and “CDCR failed to provide reasonable
accommodations after the incident in violation of ADA rules of an already protected
individual under the ADA.” (Doc. No. 1 at 5, 8.) Even assuming without deciding that
Plaintiff’s assertion he suffers from PTSD and other mental health issues (see e.g., id. at 5)
is sufficient to plausibly allege he is an individual with a disability under the first element,
Plaintiff nonetheless does not satisfy the remainder of the requisite elements, as he offers
only a vague and conclusory contention that CDCR “failed to provide reasonable
accommodations after the incident.” (Id. at 8.) Thus, Plaintiff’s ADA claim fails because
he does not offer facts plausibly alleging what, if any, accommodations were not provided,
nor does he allege that the CDCR’s failure to provide any such accommodations was done
“by reason of” his disability. O’Guinn, 502 F.3d at 1060.
Accordingly, Plaintiff’s ADA claim is dismissed sua sponte pursuant to 28 U.S.C.
§§ 1915(e)(2) & 1915A(b) for failure to state a claim.
5. 	Bane Act
Plaintiff also raises a state law claim, alleging a violation of the Bane Act, Cal. Civ.
Code § 52.1 arising from the Defendants’ “interfering with Plaintiff’s constitutional rights
through intimidation and racial harassment.” (Doc. No. 1 at 8.) “[I]n any civil action of
which 	the 	district 	courts 	have 	original 	jurisdiction, 	the 	district 	courts 	shall 	have
supplemental jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy under
Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Yet here, because the
Court has dismissed all of Plaintiff’s federal claims from the instant civil action, the Court
declines to exercise supplemental jurisdiction over this state law claim. See 28 U.S.C.
§ 1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a) if– . . . (3) the district court has dismissed all claims over which
it has original jurisdiction . . .”).
The Court further notes that “[t]he elements of a Bane Act claim are essentially
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identical to the elements of a § 1983 claim, with the added requirement that the government
official had a ‘specific intent to violate’ a constitutional right.” Hughes v. Rodriguez, 31
F.4th 1211, 1224 (9th Cir. 2022) (quoting Reese v. County of Sacramento, 888 F.3d 1030,
1043 (9th Cir. 2018)). In addition, to state a Bane Act claim against a public entity or
employee, a plaintiff must first comply with California’s Government Claims Act
(“CGCA”) presentation requirement. See State of Calif. v. Super. Court (“Bodde”), 32 Cal.
4th 1234, 1239 (Cal. 2004) (citing Cal. Gov’t § 900, et seq.). To do so, a plaintiff must
specifically allege compliance with the CGCA in their pleading. See id. at 1237, 1240.
Here, even if the Court were inclined to exercise supplemental jurisdiction, because
the requisite elements of a Bane Act claim are “essentially identical” to those of a § 1983
claim, as currently pleaded, Plaintiff does not state a claim for relief under the Bane Act
given he has failed to state a claim for relief as to any of his § 1983 claims. See Hughes,
31 F.4th at 1224. Furthermore, it does not appear that Plaintiff has alleged either facts
showing compliance with the CGCA or facts that would excuse compliance, as necessary
to state a Bane Act claim in federal court. See Bodde, 32 Cal. 4th at 1239 (“[F]ailure to
allege facts demonstrating or excusing compliance with the claim presentation requirement
subjects a claim against a public entity to a demurrer for failure to state a cause of action.”);
see e.g., Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988)
(“Karim–Panahi’s pendent state law tort claims against both the individual and public
entity defendants are barred unless he presented them to the City and the LAPD before
commencing suit.”); Mangold v. California Public Utilities Comm’n, 67 F.3d 1470, 1477
(9th Cir. 1995).
D. 	Leave to Amend
In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt
to sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th
Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend
[pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.”) (internal quote marks omitted).
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III. 	Conclusion and Orders
Accordingly, good cause appearing, the Court:
1) 	GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 4).
2) 	DIRECTS the Secretary of the CDCR, or his designee, to collect from
Plaintiff’s trust account the $11.81 initial filing fee assessed, if those funds are available
at the time this order is executed, and forward whatever balance remains of the $350 owed
in monthly payments in an amount equal to twenty (20%) percent of the preceding month’s
income to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10.00
pursuant to 28 U.S.C. § 1915(b)(2).
3) 	DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,
P.O. Box 942883, Sacramento, California, 94283-0001.
4) 	DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim
upon 	which 	relief may 	be granted 	pursuant 	to 	28 	U.S.C. §§ 	1915(e)(2)(B)(ii) &
1915A(b)(1).
5) 	GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
which to file an Amended Complaint which cures all the deficiencies of pleading noted.
Plaintiff’s Amended Complaint must be complete by itself without reference to his original
pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
(claims which are not re-alleged in an amended pleading may be “considered waived if not
repled.”).
If Plaintiff fails to file an Amended Complaint within the time provided, the Court
will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state
a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
1915A(b)(1), and his failure to prosecute in compliance with a court order requiring
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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
not take advantage of the opportunity to fix his complaint, a district court may convert the
dismissal of the complaint into dismissal of the entire action.”).
IT IS SO ORDERED.
Dated: March 26, 2026
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